First Nat. Bank of Holdenville v. Jacobs , 26 Okla. 840 ( 1909 )

For convenience, we shall hereafter refer to the First National Bank of Holdenville, appellant, as intervener, and John A. Jacobs, appellee, as plaintiff, and G. B. Roderick and Jessie Roderick as defendants. The only propositions which it will be necessary for us to consider arise on plaintiff's motion to dismiss the appeal. The ground upon which dismissal is asked is that the defendants, George B. Roderick and Jessie Roderick, have not been served with citation, and have not been otherwise made parties to the appeal. Intervener in its reply to this motion to dismiss answers that defendants are not necessary parties to the appeal, and that, if they are, no service of citation upon them was necessary for the reason that the appeal was allowed in open court at the term at which the decision was rendered, and that the defendants thereby had notice of it. This appeal was taken and perfected under the provisions of Act Cong. March 3, 1905, c. 1479, § 12, 33 Stat. 1081 (U.S. Comp. St. Supp. 1909, p. 219), which provides that appeals and writs of error shall be taken from the United States courts in the Indian Territory in the same manner that cases are taken by appeal, or writs of error, from the Circuit Courts of the United States to the United States Circuit Court of Appeals for the Eighth Circuit. These provisions of this act of Congress were before this court for construction in the case of Porter et al. v. Brook, 21 Okla. 885, 97 P. 645, and it was there held that said act put in force in the Indian Territory Act Cong. March 3, 1891, c. 517, § 11, 26 Stat. 829 (U.S. Comp. St. 1901, p. 552), which prescribes the procedure which governs appeals and writs of error by which judgments and orders of the United States courts may be reviewed in the United States Circuit Court of Appeals. The appeal in this case is therefore governed by the federal appellate procedure. In the federal appellate courts, the rule is that all parties to a suit who appear from the record to have an interest in the judgment appealed from must be made parties to the appeal, or must be given notice equivalent to summons and severance.Hardee v. Wilson, 146 U.S. 179, 13 Sup. Ct. 39, 36 L.Ed. 933;Davis v. Mercantile Trust Co., 152 U.S. 590, 14 Sup. Ct. 693, 38 L.Ed. 563; Farmers' Loan Trust Co. v. McClure, 78 Fed. 211, 24 C. C. A. 66; Dodson v. Fletcher, 78 Fed. 214, 24 C. C. A. 69; Gray v. Havemeyer, 53 Fed. 174, 3 C. C. A. 497; Lovelessv. Ransom, 107 Fed. 626, 46 C. C. A. 515.

We are therefore brought to the consideration of intervener's propositions in its answer to the motion to dismiss that the judgment appealed from in this action is not a joint judgment, and that defendants have no interest therein. In determining whether a party omitted from an appeal is a necessary party thereto, the courts have looked to the substance rather than to the form of the judgment in arriving at their conclusion whether such judgment is joint, and whether the omitted party has any interest therein. The judgment of the trial court confirms the title to the lot in controversy in plaintiff, and awards him possession thereof and $1,823 as damages for the detention of said property. It further adjudges that intervener take nothing against the plaintiff but that it have judgment on its note against the defendants for the balance due thereon in the sum of $3,175. The theory of plaintiff's case in the trial court was that at the time of the execution and delivery of intervener's mortgage defendants had no interest in the lot in controversy that could be conveyed by said mortgage to the intervener, and that when the town-site commission listed and scheduled the lot to plaintiff, and he paid the government therefor and received the patent, the fee-simple title thereto became vested in him. The theory of the intervener's case in the trial court was that at the time of the execution and delivery of its mortgage defendants were the owners of the improvements on the lot, and had an interest therein that was subject to conveyance by mortgage; that such interest was conveyed to it by defendants' mortgage; that its mortgage constituted a lien upon all of the defendants' interest in the lot, and that when plaintiff under the agreement with defendants had the lot scheduled to him, and obtained a patent therefor, the naked legal title became vested in plaintiff as trustee for defendants, subject to the liens of the Bruner mortgage and to intervener's mortgage; and that intervener's mortgage was a superior lien for the reason that the Bruner mortgage had not been properly recorded, and that it had no actual notice thereof at the time of taking its mortgage. By its prayer in its plea of intervention, which was treated by the court as intervener's answer and cross-petition, intervener prays the court to adjudge defendants the owners of the property in controversy, subject to the lien of its mortgage and of the Bruner mortgage, and that the court decree the title in the defendants, and award it judgment foreclosing its lien, and decree the sale of the property, and that the proceeds be applied, first, in refunding to plaintiff the money paid out by him to the government; second, to the payment of intervener's indebtedness; and, third, the remainder to plaintiff on his indebtedness secured by the Bruner mortgage, which plaintiff holds as assignee. A review of the theory upon which this case was tried in the trial court, and of what intervener sought by his prayer to have the court by its decree do, in our opinion discloses that the defendants are necessary parties to this appeal. We are asked by this appeal to reverse the judgment confirming the title in plaintiff and to decree that same belongs to defendants. The defendants are not before this court asking for any relief, and, if this were the only relief asked for by intervener, it would be a useless appeal, so far as intervener is concerned, but he further seeks to have this court, after it adjudges the title to the property in defendants, to award it a decree of foreclosure against the defendants foreclosing its lien upon the property, and, in order that the title to said property may be cleared of all incumbrances when conveyed at the foreclosure sale, that the Bruner mortgage be declared subject to intervener's mortgage, and, when the property is sold, that the proceeds remaining after the payment of the indebtedness secured by the prior lien be paid to plaintiff upon the indebtedness secured by the Bruner mortgage, thereby barring and foreclosing all the rights of plaintiff in the property by virtue of said mortgage. We are unable to see how this judgment or this relief can be granted without defendants being parties to the appeal. If it should be found that the judgment of the trial court should be reversed, and the relief intervener prays be granted to it, defendants would probably be in no better, or in no worse, condition, so far as the identical property in controversy is concerned, than they are under the present judgment, for the value of the property is insufficient to pay the indebtedness secured by both mortgages; but if, in fact, as contended by intervener, defendants are the owners of the title to this property, subject to the liens of the mortgages, this court is without power to foreclose defendants' rights therein under the mortgage without their being before this court.

At the foot of the decree of the trial court, and as part of it, is the following:

"To all and every part of which decree the defendant and intervener excepted, and intervener prays an appeal to the United States Court of Appeals of the Indian Territory, which appeal is granted, and intervener ordered to enter into an appeal bond in the sum of $3,000."

The appeal bond was not executed, approved, and filed during the term at which the decree was rendered. The intervener says that this order of the court allowing it an appeal made at the term at which the decision was rendered renders citation unnecessary. This contention is not sound. It is well settled by the federal authorities that, where an appeal is taken and perfected in open court during the term at which the decree is rendered, no citation is necessary. Railroad Co. v. Blair,100 U.S. 661, 25 L.Ed. 587. But although the appeal be allowed during the term at which the decree is rendered, if the bond is not during the term executed and approved as required by section 1000 of the Revised Statutes of the United States, citation must be issued and served. Haskins v. St. L. S.E.Ry. Co., 109 U.S. 106, 3 Sup. Ct. 72, 27 L.Ed. 873; Sage v.Railway Company, 96 U.S. 712, 24 L.Ed. 641; Richardson v.Green, 130 U.S. 104, 9 Sup. Ct. 443, 32 L.Ed. 872. If intervener had followed up the allowance of appeal made in open court, and had perfected the appeal by filing in the courts its bond before the adjournment of the term, no citation would have been necessary to bring the necessary parties to the appeal into this court, but it appears from the record in this case that the intervener failed to file its bond within the term, and that it abandoned altogether this mode of taking its appeal, and on August 8, 1907, presented to the Honorable William H. Clayton, Associate Justice of the United States Court of Appeals of the Indian Territory, its petition for an appeal, which was allowed, and on the same day executed its appeal bond, and had the same approved by Justice Clayton, and thereupon filed its petition praying an appeal, and order allowing same, its bond, and assignment of error in the trial court, and the citation issued was served upon the appellee, John A. Jacobs.

Mr. Elliott, in his excellent work on Appellate Procedure, classifies the modes of appeals in civil cases relative to the time they are taken into two classes, to wit, appeals in term and appeals after term. Appeals in term embrace those appeals which are taken by having the same allowed in open court at the term, and by doing all other things to perfect the appeal required by the statute. In this class of appeals, service of citation or notice is not required, for the adverse party is presumed to be in court during the term at which the decree is rendered, and is charged with knowledge of all acts of the court relative to his case. Intervener appears to have intended at the time the decree was rendered in the trial court to take his appeal by this method, but, having failed to perfect his appeal by this method, he abandoned it and has attempted to perfect his appeal in the manner prescribed for the second class of appeals, which, as said above, is known as appeals after the term, and in which all necessary parties must be served with citation, or the appeal becomes inoperative.Jacobs v. George, 150 U.S. 415, 14 Sup. Ct. 159, 37 L.Ed. 1127. In this case the court summarizes the rules relative to the issuance and service of summons in the following language:

"(1) When an appeal is allowed in open court and perfected during the term at which the decree or judgment appealed from is rendered, no citation is necessary.

"(2) When an appeal is allowed at the term of the decree or judgment, but is not perfected until after the term, a citation is necessary to bring in the parties. But if the appeal be docketed here at the next ensuing term, or the record reaches the clerk's hands seasonably for that term and legal excuse exists for lack of docketing, a citation may be issued by leave of this court, although the time for taking the appeal has elapsed.

"(3) When an appeal is allowed at a term subsequent to that of the decree of judgment appealed from, a citation is necessary, but it may be issued properly returnable even after the expiration of the time for taking the appeal, if the allowance of the appeal was made before.

"(4) A citation is one of the necessary elements of an appeal taken after the term, and if it be not issued and served before the end of the next ensuing term of this court and be not waived, the appeal becomes inoperative."

Under the last rule above mentioned, the issuance and service of citation upon all the necessary parties before the end of the next ensuing term of this court after the appeal was allowed was necessary. The ensuing term of this court adjourned on the 11th day of May, 1908. At that time all the necessary parties had not been brought into this court by service of citation, nor had they entered an appearance, and the appeal at that time became inoperative. Other cases in point areDodson v. Fletcher, 78 Fed. 214, 24 C. C. A. 69; Lewis v.Sittel, 165 Fed. 157, 91 C. C. A. 191.

The motion to dismiss is sustained.

All the Justices concur.

ON REHEARING.